23-373-cv Polanco v. Banks
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of May, two thousand twenty-four.
PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ ONANEY POLANCO, Individually and as Parent and Natural Guardian of A.D.,
Plaintiff-Appellant,
v. No. 23-373-cv
DAVID BANKS, in his Official Capacity as Chancellor of the New York City Department of Education, NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendants-Appellees. * ------------------------------------------------------------------
FOR APPELLANT: RORY JUDE BELLANTONI, Brain Injury Rights Group, Ltd., New York, NY
FOR APPELLEES: JANET L. ZALEON (Richard Dearing, Claude S. Platton, on the brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY
Appeal from a judgment of the United States District Court for the
Southern District of New York (John G. Koeltl, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff-Appellant Onaney Polanco, on behalf of her minor son A.D.,
appeals from a judgment of the United States District Court for the Southern
District of New York (Koeltl, J.) granting summary judgment in favor of
Defendants-Appellees on Polanco’s claims arising under the Individuals with
*The Clerk of Court is directed to amend the caption as set forth above. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chancellor of the New York City Department of Education David Banks is automatically substituted for former Chancellor Meisha Porter. 2 Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1482. We assume the
parties’ familiarity with the underlying facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to affirm.
This case is before us after three levels of review. First, on May 22, 2021,
an Impartial Hearing Officer (IHO) concluded that A.D., who uses a wheelchair,
was denied a free appropriate public education (FAPE) because the placement
school was allegedly inaccessible to him beyond its first-floor entrances. Then,
on July 30, 2021, the State Review Officer (SRO) reversed the decision of the IHO,
holding instead that Polanco forfeited the issue of accessibility at the placement
school and that the DOE had not otherwise denied A.D. a FAPE. Finally, on
February 28, 2023, the District Court granted Defendants-Appellees’ motion for
summary judgment, upholding the SRO’s decision. Polanco now asserts that the
District Court’s decision was erroneous.
Mindful that courts lack the “specialized knowledge and educational
expertise” of state administrators, we conduct a “circumscribed de novo review of
a district court’s grant of summary judgment in the IDEA context,” seeking only
to “independently verify that the administrative record supports the district
3 court’s determination.” S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 138 (2d Cir.
2013).
Polanco first argues that because the administrative proceedings were not
timely conducted, A.D. was denied a FAPE. As relevant here, New York’s
regulations require an IHO to render a decision “not later than 45 days from the
day after” the expiration period of the resolution process, 8 N.Y.C.R.R.
§ 200.5(j)(5), which is generally 30 days after a complaint has been filed, see 20
U.S.C. § 1415(f)(1)(B)(ii).
Here, even though the IHO issued a final decision nearly a year after
Polanco filed her due process complaint, A.D. was not denied a FAPE. Under
20 U.S.C. § 1415(f)(3)(E)(ii), parents are entitled to reimbursement for procedural
violations only if the violations “impeded the child’s right to a free appropriate
public education,” “significantly impeded the parents’ opportunity to participate
in the decisionmaking process,” or “caused a deprivation of educational
benefits.” In other words, where the Individualized Education Program (IEP)
itself was adequate, “any delay” in resolving a parent’s challenge to it “cannot
have prejudiced [her child’s] education.” Grim v. Rhinebeck Cent. Sch. Dist., 346
F.3d 377, 381–82 (2d Cir. 2003); see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69–70
4 (2d Cir. 2000). Because we agree with the District Court that the IEP was
adequate, the delay did not deny A.D. a FAPE.
Polanco also asserts several substantive violations. First, she argues that
the classroom intended for A.D. would not have implemented an appropriate
functional grouping of students. Generally, the sufficiency of a placement
offered by the DOE is determined based on the IEP itself. See R.E. v. N.Y.C. Dep’t
of Educ., 694 F.3d 167, 186-88 (2d Cir. 2012). Thus, “[i]n determining the
adequacy of an IEP, both parties are limited to discussing the placement and
services specified in the written plan and therefore reasonably known to the
parties at the time of the placement decision.” Id. at 187. “Speculation that the
school district will not adequately adhere to the IEP is not an appropriate basis
for unilateral placement.” Id. at 195.
Polanco’s claim is unavailing because it is speculative. Instead of
demonstrating how the proposed class grouping could prospectively have
denied A.D. a FAPE, Polanco merely speculated that the placement would have
improperly grouped A.D. had he attended the placement school. As discussed,
however, speculation “is not an appropriate basis for unilateral placement.” Id.
By contrast, the SRO, in assessing the adequacy of the plan, cited testimony that
5 the school could provide an appropriate grouping for A.D. See Walczak v. Fla.
Union Free Sch. Dist., 142 F.3d 119, 133–34 (2d Cir. 1998).
Polanco next asserts that A.D. was denied a FAPE because he was
improperly classified as having “multiple disabilities” instead of a “traumatic
brain injury.” Appellant’s Br. 16. We agree with the District Court, however,
that a “student’s disability classification is generally immaterial in determining
whether a FAPE was provided if the IEP otherwise sufficiently met the needs of
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23-373-cv Polanco v. Banks
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of May, two thousand twenty-four.
PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ ONANEY POLANCO, Individually and as Parent and Natural Guardian of A.D.,
Plaintiff-Appellant,
v. No. 23-373-cv
DAVID BANKS, in his Official Capacity as Chancellor of the New York City Department of Education, NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendants-Appellees. * ------------------------------------------------------------------
FOR APPELLANT: RORY JUDE BELLANTONI, Brain Injury Rights Group, Ltd., New York, NY
FOR APPELLEES: JANET L. ZALEON (Richard Dearing, Claude S. Platton, on the brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY
Appeal from a judgment of the United States District Court for the
Southern District of New York (John G. Koeltl, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff-Appellant Onaney Polanco, on behalf of her minor son A.D.,
appeals from a judgment of the United States District Court for the Southern
District of New York (Koeltl, J.) granting summary judgment in favor of
Defendants-Appellees on Polanco’s claims arising under the Individuals with
*The Clerk of Court is directed to amend the caption as set forth above. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chancellor of the New York City Department of Education David Banks is automatically substituted for former Chancellor Meisha Porter. 2 Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1482. We assume the
parties’ familiarity with the underlying facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to affirm.
This case is before us after three levels of review. First, on May 22, 2021,
an Impartial Hearing Officer (IHO) concluded that A.D., who uses a wheelchair,
was denied a free appropriate public education (FAPE) because the placement
school was allegedly inaccessible to him beyond its first-floor entrances. Then,
on July 30, 2021, the State Review Officer (SRO) reversed the decision of the IHO,
holding instead that Polanco forfeited the issue of accessibility at the placement
school and that the DOE had not otherwise denied A.D. a FAPE. Finally, on
February 28, 2023, the District Court granted Defendants-Appellees’ motion for
summary judgment, upholding the SRO’s decision. Polanco now asserts that the
District Court’s decision was erroneous.
Mindful that courts lack the “specialized knowledge and educational
expertise” of state administrators, we conduct a “circumscribed de novo review of
a district court’s grant of summary judgment in the IDEA context,” seeking only
to “independently verify that the administrative record supports the district
3 court’s determination.” S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 138 (2d Cir.
2013).
Polanco first argues that because the administrative proceedings were not
timely conducted, A.D. was denied a FAPE. As relevant here, New York’s
regulations require an IHO to render a decision “not later than 45 days from the
day after” the expiration period of the resolution process, 8 N.Y.C.R.R.
§ 200.5(j)(5), which is generally 30 days after a complaint has been filed, see 20
U.S.C. § 1415(f)(1)(B)(ii).
Here, even though the IHO issued a final decision nearly a year after
Polanco filed her due process complaint, A.D. was not denied a FAPE. Under
20 U.S.C. § 1415(f)(3)(E)(ii), parents are entitled to reimbursement for procedural
violations only if the violations “impeded the child’s right to a free appropriate
public education,” “significantly impeded the parents’ opportunity to participate
in the decisionmaking process,” or “caused a deprivation of educational
benefits.” In other words, where the Individualized Education Program (IEP)
itself was adequate, “any delay” in resolving a parent’s challenge to it “cannot
have prejudiced [her child’s] education.” Grim v. Rhinebeck Cent. Sch. Dist., 346
F.3d 377, 381–82 (2d Cir. 2003); see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69–70
4 (2d Cir. 2000). Because we agree with the District Court that the IEP was
adequate, the delay did not deny A.D. a FAPE.
Polanco also asserts several substantive violations. First, she argues that
the classroom intended for A.D. would not have implemented an appropriate
functional grouping of students. Generally, the sufficiency of a placement
offered by the DOE is determined based on the IEP itself. See R.E. v. N.Y.C. Dep’t
of Educ., 694 F.3d 167, 186-88 (2d Cir. 2012). Thus, “[i]n determining the
adequacy of an IEP, both parties are limited to discussing the placement and
services specified in the written plan and therefore reasonably known to the
parties at the time of the placement decision.” Id. at 187. “Speculation that the
school district will not adequately adhere to the IEP is not an appropriate basis
for unilateral placement.” Id. at 195.
Polanco’s claim is unavailing because it is speculative. Instead of
demonstrating how the proposed class grouping could prospectively have
denied A.D. a FAPE, Polanco merely speculated that the placement would have
improperly grouped A.D. had he attended the placement school. As discussed,
however, speculation “is not an appropriate basis for unilateral placement.” Id.
By contrast, the SRO, in assessing the adequacy of the plan, cited testimony that
5 the school could provide an appropriate grouping for A.D. See Walczak v. Fla.
Union Free Sch. Dist., 142 F.3d 119, 133–34 (2d Cir. 1998).
Polanco next asserts that A.D. was denied a FAPE because he was
improperly classified as having “multiple disabilities” instead of a “traumatic
brain injury.” Appellant’s Br. 16. We agree with the District Court, however,
that a “student’s disability classification is generally immaterial in determining
whether a FAPE was provided if the IEP otherwise sufficiently met the needs of
the disabled student.” Polanco v. Porter, No. 21-CV-10176 (JGK), 2023 WL
2242764, at *6 (S.D.N.Y. Feb. 27, 2023). Indeed, as the SRO held, “the IDEA’s
strong preference for identifying the student’s specific needs and addressing
those needs generally outweighs relying on a particular disability diagnosis.”
App’x 77.
Polanco also alleges that A.D. was denied a FAPE because the assigned
school nurse was not trained in G-tube feeding and the staff at the placement
school could not conduct two-person transfers. As the District Court and SRO
explained, however, the IEP provided for training in both of those functions.
Thus, Polanco’s assertion that such training would be insufficient is again
speculative. See R.E., 694 F.3d at 195.
6 Finally, Polanco claims that the placement school did not provide A.D.
with a FAPE because the school building was inaccessible beyond its first-floor
entrances. Unless the other party consents, a party requesting a due process
hearing is typically precluded from raising issues regarding the IEP that she did
not include in her due process complaint. 20 U.S.C. § 1415(f)(3)(B); see R.E., 694
F.3d at 187 (“That [due process] complaint must list all of the alleged deficiencies
in the IEP.”). Polanco failed to raise the placement school’s inaccessibility in her
due process complaint. Instead, she raised it for the first time during the hearing,
depriving the DOE of the opportunity to develop the record to reflect whether
the placement school could accommodate A.D. or whether changes to the
selected school placement were necessary. See R.E., 694 F.3d at 187 n.4. We
therefore agree with the District Court that Polanco forfeited this claim.
We have considered Polanco’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court